[Congressional Record Volume 161, Number 184 (Thursday, December 17, 2015)]
[Senate]
[Pages S8786-S8788]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, as we close the book on the first session
of the 114th Congress, our attention is on the thousands of pages in
the omnibus spending bill. But as the Republican leadership rushes to
spin the press about what the Senate has accomplished in their 12
months in the majority, there is one Senate responsibility that should
not get lost in the noise. That is our responsibility to equip our
coequal branches of government, the Federal judiciary and the executive
branch, with the confirmed public servants that both branches need to
serve the American people.
Senate Republicans began the year by filibustering the nomination of
the first Black woman to be nominated for the position of Attorney
General of the United States. No other Attorney General nominee in our
history has been met with a filibuster. That did not stop Republicans
from holding up Loretta Lynch's nomination longer than the last seven
Attorneys Generals combined. Our Nation's top law enforcement official
deserved better treatment, but the fight to get her a confirmation vote
previewed how difficult it would be to get votes scheduled on other
crucial nominees. Republicans have blocked confirmation votes for the
people nominated to serve as Ambassadors to some of our closest allies.
They have blocked consideration of nominees who would help keep our
country safe from terrorist threats, including a Treasury Department
nominee who would lead an office that investigates terrorist financing.
By the end of this week, Senate Republicans will have also earned the
dubious distinction of matching the record for confirming the fewest
annual number of judicial nominees in more than half a century. Too
many Americans who have sought justice in our Federal courts this year
have instead found delays and empty courtrooms because of Senate
Republicans' obstruction on judicial nominees. I am concerned that
Republicans' treatment of our third branch risks politicizing it and
diminishing the role that it was designed to play in our system of
government.
For the first 6 years of President Obama's tenure in office, Senate
Republicans pulled out every stop to obstruct confirmations on judicial
nominees--systematically filibustering nominees and abandoning the
Senate's tradition of confirming consensus judicial nominees before
long recesses. While I was hopeful they would change course once they
assumed the majority, they have instead taken their obstruction to
unprecedented heights by virtually shutting down judicial
confirmations.
Over the course of the entire year, Senate Republicans have allowed
judicial confirmation votes for only 11 nominees. In stark contrast,
when Senate Democrats were in the majority during the seventh year of
the Bush Presidency, we confirmed 40 judges that year--more than triple
the number of judges confirmed this year. The Senate has a
constitutional duty to provide advice and consent on the President's
nominees. It is part of the core duties we must fulfill as Senators,
and a fully functioning Federal judiciary is dependent on us meeting
this obligation.
I have urged the Republican leaders to allow confirmation votes on
the uncontroversial judicial nominees before the end of the year. We
have 19 judicial nominees still pending on the floor. Each of these
nominees was voice voted out of the Judiciary Committee, and each has
the support of their home State Senators. Traditionally, the Senate has
confirmed such consensus nominees at the end of a session, but
Republicans have repeatedly refused to do so during the Obama
Presidency. This is the seventh year in a row that Senate Republicans
are rejecting the Senate's practice of consenting to confirmation votes
at the end of a session. At the end of 2009, Senate Republicans left 10
judicial nominees on the Senate floor without a vote. At the end of
2010 and again in 2011, Senate Republicans left 19 judicial nominees
pending on the calendar as they left town. In 2012, it was 11 judicial
nominees, and in 2013, it was nine that Senate Republicans left pending
on the floor. Last year, Senate Republicans attempted to block 12
nominees on the floor in December. Fortunately, because Leader Reid
took seriously the Senate's duty to fill judicial vacancies and filed
cloture on those nominees, we were able to get those nominees
confirmed. In each of the last 2 years of the George W. Bush
administration when Democrats were in the Senate majority, we confirmed
all of President Bush's judicial nominees pending on the Executive
Calendar in December before we left for the year. Contrast that with
this year when Senate Republicans are leaving 19 judicial nominees
pending on the floor as they head home.
The Republicans' double standard for President Obama's nominees will
force the Senate to spend time next year doing work that should have
been completed by now. For example, for the 19 nominations Senate
Republicans left in 2010 and again in 2011, it took nearly half the
following year in each case for the Senate to confirm these nominees.
Perhaps Senate Republicans' real intent is to just run out the clock on
the Obama administration--but these delays are not procedural
abstractions without real world consequences. For the judicial nominees
who have already made a commitment to public service in the Federal
judiciary, the obstruction means they must continue to wait and keep
their professional lives on hold wondering if the Senate will do its
job.
The consequences for the judges currently serving in the Federal
judiciary, as well as the litigants seeking justice before them, are
also very real. Senate Republicans' treatment of judicial nominations
has resulted in a dramatic increase in judicial vacancies this year.
Since Republicans took over the majority in January, judicial vacancies
have increased by more than 50 percent--from 42 to 66. These vacancies
impact communities across America, and it is doing the most harm to
States with at least one Republican Senator. Of the 66 current
vacancies that exist, 47 of them--or more than 70 percent--are in
States with at least one Republican Senator.
Of critical concern is the fact that judicial vacancies deemed to be
``emergency'' vacancies by the Administrative Office of the U.S. Courts
have
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more than doubled this year. These vacancies represent judicial
districts where caseloads are unmanageably high, leading to lengthier
delays for parties before those courts; yet, as we leave for the year,
9 of the 19 nominees pending on the floor that Senate Republicans
refuse to confirm are judicial emergency vacancies in Pennsylvania,
Tennessee, Minnesota, New Jersey, Iowa, New York, and California.
In addition to the article III nominees, there are five nominees to
the U.S. Court of Federal Claims who were nominated well over a year
ago. Each of these nominees was unanimously voice voted out of
Committee last year and again this year. The Court of Federal Claims
has been referred to as the ``keeper of the nation's conscience'' and
``the People's Court'' because it allows citizens with claims against
the government to promptly seek justice. It is critically important
that we confirm the five pending nominees to this court. However, they
continue to be blocked by a single Republican Senator--the junior
Senator of Arkansas.
Senator Cotton claims to have concerns that the court's caseload is
not high enough and that the court should simply depend on senior
judges coming out of retirement to hear cases. A recent letter to the
committee from the chief judge of the Court of Federal Claims, however,
indicates that only one of the nine senior judges is willing to be
recalled for full-time duty and the other three would only agree to be
recalled on a limited basis. Furthermore, the court's overall caseload
has increased by 9 percent over the last year. No member of the
Judiciary Committee raised caseload concerns when these nominees were
unanimously approved by voice vote last year or again this year. There
is no good reason for Senator Cotton to deprive Americans across the
country of a fully functioning Court of Federal Claims by blocking the
five highly qualified nominees from receiving an up-or-down vote. These
nominees include Armando Bonilla, a Cuban American who has devoted his
entire career to public service at the U.S. Department of Justice; Jeri
Somers, an African-American woman who spent over two decades serving as
a judge advocate general and as a military judge; and several others
who would contribute to our justice system. As these nominees approach
the 2-year mark of waiting for the Senate to take up their
confirmations, I urge Senator Cotton to consider these well-qualified
nominees on their merits.
I have heard some suggest that Republicans' glacial pace on judicial
confirmations is political retribution for the change to Senate rules
regarding nominations. This obstruction, however, does not hurt U.S.
Senators--it hurts the American people. Behind the statistics on
Republican obstruction--the number of nominees languishing without
votes on the Senate floor, the rising number of judicial vacancies, and
the dramatic increase in emergency vacancies--are the experiences of
real people in our justice system--individuals and small businesses
seeking justice in our Federal courts who end up waiting for years for
overburdened courts to hear their claims.
The national press, including the Wall Street Journal and the
Associated Press, has highlighted the devastating effects of the high
number of judicial vacancies. The Wall Street Journal interviewed one
of the Federal judges in a California district where a judgeship went
unfilled for almost 3 years. Judge Lawrence J. O'Neill said, ``Over the
years I've received several letters from people indicating, `Even if I
win this case now, my business has failed because of the delay. How is
this justice?' And the simple answer, which I cannot give them, is
this: It is not justice. We know it.''
Senate Republicans' obstruction on judicial nominees has also had
another effect; it has halted the enormous progress needed in making
the Federal judiciary better reflect the citizenry it serves. This
progress increases public confidence in our justice system. I am proud
of the fact that there are more women and minorities than ever before
serving on our Federal bench.
Yet, as we conclude this session, the Senate is leaving several
nominees of color with outstanding qualifications on the floor without
votes. This includes Judge Luis Felipe Restrepo, who was nominated to a
judicial emergency vacancy in the third circuit well over a year ago.
When he is eventually confirmed, he will be the first Hispanic judge
from Pennsylvania on the third circuit. Judge Restrepo has the strong
support of the Hispanic National Bar Association and has bipartisan
support from his home State Senators, Senator Toomey and Senator Casey.
Senator Toomey has said not only that he strongly supports Judge
Restrepo's confirmation, but that he also recommended him to the
President. Despite this overwhelming support for his nomination and the
emergency vacancy that needs to be filled urgently, Republican
leadership recently skipped over Judge Restrepo on the Executive
Calendar to confirm a district court nominee from Tennessee for a
nonemergency judgeship.
In addition to Judge Restrepo, Senate Republicans are adjourning for
the year with four exceptional African-American district court nominees
and an exceptional Hispanic district court nominee held up on the
floor. Two of the African-American nominees--Waverly Crenshaw and
Edward Stanton--have been nominated to district court positions in
Tennessee. Both have the support of their home State Republican
Senators and were unanimously approved by the Judiciary Committee by
voice vote. The three other nominees of color--Justice Wilhelmina
Wright to the District of Minnesota and John Vazquez and Julien Neals
to the District of New Jersey--are all nominated to judicial emergency
vacancies. All have the support of their home State Senators, and all
were voted out of the Judiciary Committee by voice vote. The only
reason all of these nominees could not be confirmed this week is that
Senate Republicans would not allow it.
While there is no reason not to hold votes on these nominees today, I
am glad that Republicans have consented to a bipartisan plan to confirm
five well-qualified judicial nominees in the 5-week period after we
return in the new year. Because of this agreement, the Senate will be
on pace in the first 2 months of next year to confirm almost half the
number of nominees it took us this entire year to confirm. Under the
agreement, the Senate will hold confirmation votes for Judge Restrepo
as well as four district court nominees: Justice Wilhelmina Wright to
the district of Minnesota; John Vazquez to the district of New Jersey;
Judge Rebecca Ebinger to the southern district of Iowa; and Judge
Leonard Strand to the northern district of Iowa. Four of these nominees
are nominated to fill emergency vacancies, and three are nominees of
color. This agreement allows for good progress that the Senate must
continue to build on, so that we reduce judicial vacancies to ensure
that Americans can seek timely justice in our courts.
Federal judges serve an essential role in communities across the
Nation. In 2 weeks, the Chief Justice of the United States will issue
his end-of-year report. His predecessor often noted in such reports the
impact of unfilled judicial vacancies on the functioning of the third
branch. I hope that such a core resource matter will again be addressed
in the upcoming report because the Republican majority's treatment of
nominations this past year has been an historic disappointment.
I hope that, in the new year, the Senate will make progress on the
judicial nominees pending in the Judiciary Committee as well as on
additional nominees that we receive from the President. I was glad to
hear the majority leader's remarks this week that he does not believe
there should be a cutoff point for confirming qualified judicial
nominees in an election year. The majority leader has been consistent
on this view, and I commend him for it. In July 2008, the Senate
Republican caucus held a hearing solely dedicated to arguing that the
Thurmond rule does not exist. At that hearing, the senior Senator from
Kentucky stated: ``I think it's clear that there is no Thurmond Rule.
And I think the facts demonstrate that.'' Similarly, the Senator from
Iowa, my friend who is now serving as chairman of the Judiciary
Committee, stated at that hearing that the Thurmond rule was in his
view ``plain bunk.'' He said: ``The reality is that the Senate has
never stopped confirming judicial nominees during the last few months
of a president's term.'' That was certainly the case when
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Democrats were in the majority in the last 2 years of the George W.
Bush administration. I served as chairman of the Judiciary Committee
then, and I can tell you that Senate Democrats confirmed 22 of
President Bush's judicial nominees in the second half of 2008.
The American people deserve to have judicial vacancies in their
communities filled. Hard-working Americans across this country are
counting on us to do our jobs as Senators. Our constituents call our
offices and meet with us to let us know how they feel about the
legislative issues before us. They should not also have to ask us to
fulfill the bare minimum of our constitutional duties, such as the duty
to consider nominees in a timely manner to keep the third branch of
government fully functioning.
I sincerely hope the new year will bring a new approach from Senate
Republicans and that we can move forward to confirm all of the pending
judicial nominees without further delay.
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